262 A.D. 763 | N.Y. App. Div. | 1941
In an action to recover damages for personal injuries sustained by plaintiff through tripping in a hole alleged to have been created by defendants in a public sidewalk, order granting reargument and on reargument adhering to the court’s original decision and granting plaintiff’s motion to strike out the separate defense contained in the answer of each defendant, in so far as appealed from, reversed on the law, with one bill of ten dollars costs and disbursements, and the motion denied, with one bill of ten dollars costs. The amended complaint alleges nuisance as well as negligence. In order to meet a possible claim that they had created an absolute nuisance, a theory which would relieve the plaintiff of proving freedom from contributory negligence, the defendants should be permitted to prove that the hole was made under a permit from the city. (McFarlane v. City of Niagara Falls, 247. N. Y. 340; Delaney v. Philhern Realty Holding Corp., 280 id. 461.) The issuance of the permit could not be proved unless pleaded. (Clifford v. Dam, 81 N. Y. 52.) Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.